Tag Archives: Facebook

In the "Be careful what you wish for!" category, first we had the Arab Spring, which was considered to be a positive development for the Middle East – in the West, anyway. Now we have the UK riots – and the reaction is entirely the opposite.

That's the problem with revolutions; perspective is skewed based on which side of them you're on.

What's more interesting to me is the difference between the vehicles of change. With the Arab Spring, it was Facebook, Twitter and YouTube. With the UK riots, it's Blackberry Messenger (as if Blackberry doesn't have enough public-relations issues right now, including losing yours truly as a customer).

What's driving this decision? Economics, for one (Blackberries are cheaper in that region) and secrecy (BBM is private). I don't want to belabor the point – people died in both riots – but we should endeavor to understand these issues.

If this were happening in the United States, we'd be arguing whether this was a Constitutional violation of the Brandenburg standard. And while we argued, the FBI would be accumulating electronic evidence.

You may consider yourself to be on the 'right' side of the revolution, but make no mistake; either way, someone is tracking you. This will make a big difference if, in the end, you find yourself on the 'wrong' side.

Anyone who still doubts the power of social media should take note of this story. Iceland is re-writing its Constitution, which would be a big enough deal on its own, however, they're inviting public comment on Facebook, Twitter and YouTube. Think about the implications of this for a moment. A process normally reserved for the elites of society, accessible to the general public.

By (no pun intended) coincidence, both the states of California and New York are addressing sexting issues by students and/or teens. The California Senate has already passed their version, while New York has only reached the proposal stage of their version. New Jersey is ahead of both states and has already passed a bill.

California's approach is more in the discipline arena, spelling out how students may be punished for sexting where the misconduct falls under the jurisdiction of a school. New York's is more broad and is geared toward a diversion program for first-time young offenders.

We've seen many jurisdictions take a very hard line where sexting by and between minors is concerned. For example, children have been charged with distributing child pornography – even for sexting photos of themselves. These are serious felonies that could result in jail time as well as the perpetrator being forced to register as a sex offender.

Furthermore, we get into a sticky area of protected classes, which are rules designed to protect the target class of an offense. In other words, if a statutory rape charge is designed to protect a young female against the advances of a young male, and both are caught having sex, the rule prevents prosecuting the female because she's in the class the offense is designed to protect. I refer to it as the "Groucho Marx" Rule (you know, "I wouldn't join any club that would have me as a member"?) The relevance here is that in many sexting cases, minors are being charged via underage rules that were designed to protect – you guessed it – minors.

I like to preface all child-related discussions with the fact that I don't have any children, so I'm not pretending to be the most qualified in the area, however, my approach is to ask current parents what they think they might have done if they'd had access to all of this amazing technology when they were young and – most likely – didn't consider the consequences of their actions? Do they think they might have done ill-advised, accidental or – dare I say – stupid things? Most of them would probably admit they might have; or did. Would they want their lives – and possibly their entire futures – destroyed due to one moment of poor decision-making? Remember, the only difference between now and then is, Twitter, Facebook and the Internet didn't exist to capture it all in real-time.

The other day, I caught this article from Politico regarding House Oversight and Government Reform Committee Chairman (R-Calif.) Darrell Issa's desire to get his committee's hands on White-House-generated emails, Facebook posts and Tweets. Nothing unusual about that, we would agree. But therein lies the rub; he wants personal emails, Facebook posts and Tweets.

Let's put Issa's political motivations aside for a moment and look at this objectively. I've certainly mentioned several times that the line between public and private is becoming more blurred by the day. None of us helps the cause, do we? We send public email from private accounts and private email from public accounts. Many people use Facebook for both private and public purposes with no separation whatsoever. Same with Twitter.

Hey, even in the accounting department, they know about the rules against commingling! The problem is, it's so easy to circumvent what would be normal auditing protocols, isn't it? And who wants to log into – and check – multiple accounts, anyway? Besides, as an example, you can use your Facebook account to log in to other resources, so why not? I could even do so to write this blog – if I had a Facebook account, that is…

That's what my headline means: It matters little whether you choose paper or plastic; either way, you're still transporting groceries…

[This is the 1st time I've retrieved a post from the archives. It was my 28th, from February 4th, 2009. The reason I'm doing so is, this seems to be the most popular article I've written, in terms of republishing, anyway. Maybe people just like the title. I recently granted permission for it to be reprinted for an attorney malpractice CLE course in New Jersey April 26th, and it occurred to me; I didn't really have any subscribers back then, so it's likely almost none of you have ever seen it.]

Who wrote this? Attorneys! I'm picking on attorneys because they should know better, but my point is simple; live your life online and it'll come back to haunt you, someday. Hello??? You do know this stuff may be discoverable, right?

Since it's fast approaching, here's a President's Day story for you…

An underling wrote to a General – who would go on to be President of the United States – regarding an act of treason. The underling was profligate, rambling on and on about the facts of the case, anecdotal details et al, until finally getting to the point; the request for the General to sign-off on an executive order of execution.

The General was not amused. In his order authorizing the execution, he decided to 'send a message' when he sent the message. His order contained two words:

"So do."

The underling got the message. Upon execution of the order, he sent a follow-up to the General:

"Done."

In the above story, the names were changed to protect the innocent (which means I couldn't find a link to provide, even though I know the story – in some variation – actually occurred. My recollection is that the missive was sent to General Washington during the American Revolutionary War).

Are you getting the message?

Everybody's seen this on TV – the Miranda warnings. I'm adopting two of the four Miranda rights as our new e-discovery mantra:

You have the right to remain silent. Anything you say can and will be used against you in a court of law.

You may be dealing with an adversary who has deep pockets. What do you think happens the moment a dispute – or threat of one – occurs? In the old days, they'd hire a private investigator to gather data on the principals, their attorneys, their contacts, heck, even their pets!

Now, they just do a web search.

There's an old saying; if we could be convicted for what we're thinking, we'd all be in jail! Forget about 'conviction' for a moment. Anything you say, no matter when you said it, may be fair game in court to show bias, prior inconsistent statement or a host of other possibilities. You are creating a record – possibly permanently – of your thoughts. If you think that deleting them makes them go away, it doesn't. They can still be recovered in many cases – by someone like me.

If you are operating under the notion that this is personal – and professional litigation is separate – think again. Anything that can be used to create a profile of how you might carry out your professional duties may be fair game.

Paranoid? You should be. You have to be your own filter. Before you post, ask yourself whether you're OK with the concept that anyone on earth might see it – forever. If the answer is yes, go ahead. Post it. Otherwise, keep it to yourself.

This is e-discovery 101. Common sense. We all possess it; we just have to execute.

What we think is not the same as what we know. I've been following the, "I own 50% of Facebook" lawsuit, but I admit, until I drilled down into the minutia, all I knew for a fact was, Plaintiff had refiled the case and included some damning email messages, and Defendant stated the emails are fake. Since the suit prominently features ESI, I wanted to better understand the issues.

No doubt about it, this is a true eDiscovery whodunit. I read a few articles and this is what I've learned. Ceglia claims he owns 50% (or more) of Facebook. Facebook claims he doesn't. That's right. That's all I know. I certainly read some fascinating excerpts, though.

However, I can point you to article after article that purports to know more, but doesn't. Don't get me wrong; unless one is writing a factual piece, there's no journalistic requirement to state only facts. I actually learned a lot of valuable factual information from the linked article (notwithstanding the reputation of the author). The problem – for me, anyway – is that law and speculation don't mix. And opinion? Expert opinion?

If this case goes to trial, Plaintiff will likely produce at least one expert who claims the ESI in question is genuine. Defendant will likely produce at least one expert who claims the ESI in question is fraudulent. Or perhaps experts on both sides can't conclude either way, due to the amount of time that has passed since the emails were exchanged. Who decides? Will it become a question of fact for the jury?

I sure would like to give you my answer, but the entire previous paragraph was pure speculation. As soon as I used the word, "If"…

This should probably be obvious to most of us, but in case it isn't, I give you the following advice: If your public persona directly conflicts with your private one (e.g., you're a hypocrite), perhaps you aren't best suited for social media. Examples?

1 – A technology-savvy priest who was carrying on an affair – with his second cousin, no less – should probably not host a TV show with 200,000 viewers where he espouses the vow of celibacy (yes, TV is an ancient form of social media…). By the way; he reportedly ended the affair two years ago, but unfortunately, the evidence never goes away.

Irony of the day? He also penned the books, "On Camera and Off" and "Life Full of Surprises."

Indeed. Another reputation stained.

2 – Say you're a cop, you know, that whole, "To Protect and To Serve" mantra? Best not to describe your occupation on Facebook as "Human Waste Disposal". Just sayin'.

See, with our 1st example, it's more about embarrassment, but with our 2nd, it's about scuttling criminal trials. How?

Bias, among other things. A comment like that suggests a pre-disposition toward the public at large – and might even suggest a little instability. Notice I used the word, 'suggest'. I'm not saying it's true, because that doesn't matter. Never underestimate the power of suggestion.

Unless you think about it very carefully – or experience it yourself – many people simply can't understand how off-hand comments like this can become a very big deal. But they can – especially in a criminal proceeding where reasonable doubt is the standard. Oh, and as a bonus, you might even receive a reprimand and/or get fired.

Contemplate it…count to ten…do whatever is necessary to check yourself. Otherwise, you'll be saying "Dam", alright, but it'll be a homonym.

Criminals need love, too. So much so, that even after committing a crime – and jumping bail – they still can't contain themselves from looking for love on Facebook, MySpace, et al. You know how you're always hearing the warning, "That intriguing woman named Jenny you're IMing with might actually be a 13-year-old male student from Minnesota"?

Well, it also might be the last name of an anal-retentive, 28-year-old male bounty hunter who's tracking you across state lines. It also might – as it did in this case – lead to your recapture.

In a 140-character world, I hope you'll take the time to read this story, because you'll get a lot more out of it than you think. Not only do we see another convergence between the old, in the form of an 1873 Supreme Court case Taylor v. Taintor, and the new, social media, but I'd like you to focus on how much information Jenny gleans just from pouring over the skip's profiles.

If you're purely a data-tech, I understand how you may not care about any of this, but all we ever hear is how everyone wants everyone else to cooperate. In order to cooperate, it helps to understand how others do their jobs, why they do them the way they do them and what they're hoping to accomplish. Or, in simpler terms, the psychology of it.

The reality is, if people kept their mouths shut, you'd be amazed how many more cases would remain un-solved. While this is a criminal example, it applies in a civil context as well.

Loose lips do, indeed, sink ships. It's just that nowadays, the anchor is attached to social media.

Sorry folks, I'm already running behind this week. For starters, I wanted to make a couple of quick notations:

Congratulations to the Ciaran Contrarian Super Bowl Calculator which has, once again, worked in my favor! One of these days, I may actually bet money!

There's been a settlement in the "Drowning Pool" case, or as the Wall Street Journal likes to call it, the "Facebook Firing" case. It's very short on any useful guidance. I'd place it in the "kissing your sister" category.